Sunday, March 6, 2016
Webcast tomorrow at 6:30 pm Mountain: A grassroots discussion on fracking by the mayor of Dish, Texas
This is a local event about fracking, but since it is being webcast, I am posting it here. Fracking has just come to Idaho and, with uncertain reserves, it is unclear what role it will play in Idaho's future. For those around the country with an interest in what grassroots organizations around fracking look and sound like, I thought this could be a way in...without having to leave your computer. Here is the info:
Tomorrow, Monday, March 7th, Citizens Allied for Integrity and Accountability - C.A.I.A. - is bringing the former Mayor of Dish, TX, Calvin Tillman, to speak at the Lincoln Auditorium at the Statehouse in Boise at 6:30 p.m. (flier attached). Calvin now sits on the Aubrey City Council and has years of firsthand experience with oil and gas development in his capacity as an elected official and impacted homeowner/father.
Any help you can help you can give us in spreading the word would be much appreciated! THIS EVENT IS BEING LIVE-STREAMED! Here's the link. There isn't a person in the country who will not benefit from hearing Calvin speak. Even if you are pro-oil and gas, you need to hear what he has to say to protect yourself and get favorable leasing term. In case the link doesn't work for you: http://idahoptv.org/insession/inc/inSess_vidParams.cfm?streamType=IOS&locID=11&commID=0&legBodyID=11V
SB1339 will probably be voted on by the full house on Monday. If you haven't written/contacted your lawmakers it's not too late. For those of you on the Eastern side of the state (or Central/Northern Idaho) this bill WILL affect YOU and YOUR property rights also! If you need a list of talking points, email me and I'll send them!
Saturday, March 5, 2016
Land Use Prof Blog is excited to welcome back Jesse Richardson (WVU Law) as our March guest blogger. Here is a bio:
Jess J. Richardson, Jr. .is the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic and Associate Professor of Law at the West Virginia University College of Law. Before coming to WVU, Jesse was an Associate Professor in Urban Affairs and Planning at Virginia Tech, teaching land use law, environmental law, urban growth management and real estate. His research and experience focuses on land use law and water law. Prior to his academic endeavors, Jesse was in private practice in his home town of Winchester, Virginia, first with a large law firm, then as a solo practitioner. He presently serves on the Board of Directors of the American Agricultural Law Association, the Universities Council on Water Resources and the National Cave and Karst Research Institute. He previously served on the Virginia Farmland Protection Task Force and the Virginia Water Policy Technical Advisory Committee. Jesse was honored with the 1999 Professional Scholarship Award from the American Agricultural Law Association, the 2004 William E. Wine Award for a history of teaching Excellence from Virginia Tech (the highest teaching award granted by the university), and the 2009 University Certificate of Excellence in Outreach. He has worked with communities in West Virginia and Virginia on land use planning issues, including issues related to karst and water resources. He holds a B.S. and M.S. in Agricultural and Applied Economics from Virginia Tech and a J.D. from the University of Virginia School of Law.
Wednesday, March 2, 2016
Ninth Circuit upholds NEPA analysis for forest plan reducing sheep grazing by 70%, potentially paving the way for dramatic reductions in sheep grazing on federal lands
The Ninth Circuit just issued its decision in Idaho Wool Growers v. Vilsack. Decision here. The decision upholds NEPA analysis for Payette National Forest forest plan that will reduce sheep grazing in the forest by 70%, from 100,000 acres to 30,000 acres. With this win, it is likely that the Forest Service, and other federal agencies in the West, will seek to reduce sheep grazing because of fear of disease transmission between domesticated sheep and bighorn sheep. Here is an excerpt of my editorial about the case for the LA/SF Daily Journals (Nov. 17, 2015 editions, behind pay wall):
In Idaho Wool Growers, sheep grazers challenged the adequacy of the U.S. Forest Service’s environmental review of the Payette National Forest Land and Resource Management Plan, a document required under the National Forest Management Act that has been a source of acrimony since its first draft appeared in 1988. At the center of the plan, which was last amended in 2010, was to reduce grazing of domestic sheep in the forest by 70 percent—from 100,000 acres to 30,000 acres—in order to protect wild bighorn sheep from disease potentially transmitted from the domesticated sheep.
That proposal cut straight to the heart of locals, as sheep grazing is an industry deeply entrenched in the State’s political and cultural heritage. For instance, the State’s lieutenant governor, a former president of the Idaho Wool Growers, operated a third-generation sheep farm started by his grandfather, known as “The Sheep King.” Idahoans continue to celebrate a deep cultural connection to their nineteenth century Basque immigrant forefathers, many of whom were sheep grazers. Those days meant months at a time spent living in spare karro kampos wagons, a heritage now proudly celebrated and remembered at Basque festivals, called Jaialdi, held every five years in Boise.
It is no wonder, then, that the sheep grazers would seek to prevent the Forest Service from dramatically reducing sheep grazing in the forest. Moreover, there is concern among many sheep grazers that this forest plan is just the first salvo: other federal agencies that govern public lands in this State, such as the Bureau of Land Management, are watching this case to decide how to proceed with protecting bighorn sheep from disease on their own lands. A win for the Forest Service here could mean more big reductions in sheep grazing from those other agencies. The federal agencies’ hands are also being forced, to some degree, by environmental groups that are challenging sheep grazing allotments out of concern for bighorn sheep.
Despite the high stakes for sheep grazers, the NEPA case itself presents a relatively common “experts” question. At its core, the plaintiffs’ case is that NEPA regulations require the Forest Service to consider relevant expert agency comments into decisionmaking and that the agency violated this requirement by failing to consider input from the Agricultural Research Service (ARS), the in-house research agency of the U.S. Department of Agriculture, which is often more favorable to agricultural interests than some other agencies. In particular, plaintiffs allege that the Forest Service improperly ignored a paper by a specific ARS scientist that cast doubt on the link between domestic sheep grazing and bighorn health issues.
The Forest Service argued that ARS and the scientist were not relevant “experts” because they had no expertise in wildlife management. In any case, the Forest Service further argued, it took into consideration opposing viewpoints, voiced largely by representatives of agricultural interests, and weighed those viewpoints against “a large body of peer reviewed and published literature spanning several decades,” the majority of which “supports the potential for disease transmission between the species, documents bighorn die-offs near domestic sheep, and supports the management option of keeping these species separate to prevent disease transmission.” The agency noted that “there is no peer reviewed literature that suggests [that] bighorn sheep can be grazed with domestic sheep without concern for disease transmission between the species” and that “[s]cientists from both sides of the issue also recommend that the species be kept separate until the disease transmission science is better understood.”
This decision may well be a threshold decision on the future of sheep grazing on federal lands.
Tuesday, March 1, 2016
Here are all of the land use-law related articles posted to the SSRN Property, Land Use & Real Estate Law eJournal in February.
Scholars based at U.S. institutions:
The Private Pore Space: Condemnation for Subsurface Ways of Necessity
Wyoming Law Review, Vol. 16, No. 1, 2016
Tara Kathleen Righetti
University of Wyoming College of Law
Simple Acts of Tolerance: A Slap in the Face to Acquisitive Prescription
Jessica Mae Reed
Southern University Law Center
Addressing Rural Blight: Lessons from West Virginia and WV LEAP
24:3 Journal of Affordable Housing and Community, 2016, Forthcoming
Ann M. Eisenberg
West Virginia University, College of Law, Students
On Bargaining for Development
Florida Law Review Forum, Vol. 67
Timothy M. Mulvaney
Texas A&M University - School of Law
A Three-Legged Stool on Two Legs: Recent Federal Law Related to Local Climate Resilience Planning and Zoning
47 Urb. Law. 525 (2015), Touro Law Center Legal Studies Research Paper Series
Sarah Adams-Schoen and Edward Thomas
Touro College - Jacob D. Fuchsberg Law Center and Independent
BYU Law Research Paper No. 16-03
Lisa Grow Sun and Brigham Daniels
Brigham Young University - J. Reuben Clark Law School and Brigham Young University - J. Reuben Clark Law School
The Potlatch as Fractional Reserve Banking
Unlocking the Wealth of Indian Nations, Terry L. Anderson ed., Lexington Books, Forthcoming, George Mason Law & Economics Research Paper No. 16-05
D. Bruce Johnsen
George Mason University - School of Law
Property, Intellectual Property, and Social Justice: Mapping the Next Frontier
Brigham-Kanner Property Rights Conference Journal, 2015, UC Berkeley Public Law Research Paper No. 2736517
Peter S. Menell
University of California, Berkeley - School of Law
New York Residential Landlord-Tenant Law and Procedure ─ 2015-2016
Gerald Lebovits, Damon Howard & Michael Terk, New York Residential Landlord-Tenant Law and Procedure ─ 2015-2016 (N.Y. St. B. Ass'n 8th ed. 2015).,
Gerald Lebovits , Damon P. Howard and Michael B. Terk
Columbia University - Law School , Independent and David Rozenholc & Associates
Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing
Blake A. Watson, Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing, 11 Texas Journal of Oil, Gas, and Energy Law 1 (2016)
Blake A. Watson
University of Dayton School of Law
A Doctrine Adrift: Wisconsin's Public Trust
United States Courts - United States Court of Appeals for the Eighth Circuit
'Foaming the Runway' for Homeowners: U.S. Bankruptcy Courts Preserving Homeownership in the Wake of the Affordable Modification Program
American Bankruptcy Institute Law Review, Vol. 23, 2015
Linda E. Coco
Barry University - Dwayne O. Andreas School of Law
On Resolving Church Property Disputes
Arizona Law Review, Forthcoming
Michael W. McConnell and Luke W. Goodrich
Stanford Law School and The Becket Fund for Religious Liberty
Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine
Michael C. Blumm
Lewis & Clark Law School
Shooting the Albatross: Why a State Takeover of Federal Public Lands Would Make Endangered Species Act Compliance More Expensive and Difficult
Environs, Vol. 38, 2016, University of Utah College of Law Research Paper
John Ruple , Mark K. Capone , Emanuel Vásquez and Alison Jones
Office of the General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce , Wild Utah Project and Wild Utah Project
Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning's Centennial Year
Zoning & Planning Law Report, December 2015
John R. Nolon
Pace University School of Law
Assessing the Effect of Airbnb on the Washington DC Housing Market
Fifty Shades of State: Quantifying Housing Market Regulations in Germany
Konstantin A. Kholodilin
German Institute for Economic Research (DIW Berlin)
The Transfer of Public Lands Movement: Taking the 'Public' Out of Public Lands
Stegner Center White Paper No. 2015-01, S.J. Quinney College of Law Research Paper No.99
Robert B. Keiter and John Ruple
University of Utah - S.J. Quinney College of Law and
Buying Happiness: Property, Acquisition, & Subjective Well-Being
University of Houston Law Center
Local Regulating of Drone Activity in Lower Airspace
Boston University Journal of Science and Technology Law, Forthcoming, Arizona Summit Law School Paper Series 2016-A-02
Michael N. Widener
Arizona Summit Law School
Fracking in Louisiana: The Missing Process/Land Use Distinction in State Preemption and Opportunities for Local Participation
Louisiana Law Review, Forthcoming, UNM School of Law Research Paper No. 2016-01
University of New Mexico School of Law
A Park for Everyone: The National Park Service in Urban America
56.1 Nat. Resources J. 1 (2016), Akron Research Paper No. 16-01
Sarah J. Morath
University of Akron - School of Law
Decentralized, Disruptive, and On Demand: How the Sharing Economy Will Re-Shape Local Government
Ohio State Law Journal, Forthcoming
Stephen R. Miller
University of Idaho College of Law - Boise
Penn Central Take Two
Vanderbilt Public Law Research Paper No. 16-6
Vanderbilt Law School
Colonial Property, Private Dams, and Climate Change in Virginia
Washington & Lee Legal Studies Paper No. 2015 - 21
Washington and Lee University - School of Law
The Political Rhetoric of Property and Natural Resource Ownership: A Meditation on Luck, Taxation and Appalachia
Washington & Lee Legal Studies Paper No. 2015 - 20
Washington and Lee University - School of Law
Reforming Proposition 13 to Tax Land More and Buildings Less
California Policy Options, 2016, Forthcoming, UCLA School of Law, Law-Econ Research Paper No. 16-01
Kirk J. Stark
University of California, Los Angeles (UCLA) - School of Law
'Raisins are Not Oysters': Horne and the Improper Synthesis of the Public and Wildlife Trusts
Arizona Journal of Environmental Law & Policy, Vol. 6, No. 2, 2016
Autumn T Breeden
University of Mississippi, School of Law, Students
Toward a Heterodox Property Law and Economics
2 Tex. A&M L. Rev. 489, 2015
Lua K. Yuille
University of Kansas School of Law
Land Use Law Update: Reed v. Town of Gilbert Redux
29 Mun. Law. 39 (Fall 2015), Touro Law Center Legal Studies Research Paper Series No. 16-05
Touro College - Jacob D. Fuchsberg Law Center
Code Section 1031 Swap-and-Drops Thirty Years after Magneson
Journal of Passthrough Entities, Vol. 19, p. 11, 2016, Brooklyn Law School, Legal Studies Paper No. 441
Bradley T. Borden
Brooklyn Law School
Scholars based at non-U.S. institutions:
Urbanistica, moschee e altri luoghi di culto. Riflessioni a partire da una recente legge della Regione Lombardia. (Urban Planning and Mosques. A Critical Exploration of Planning Problems Starting from Current Regulations in Lombardy Region, Italy)
GSSI Cities Working Papers Series 26/2016
Francesco Chiodelli and Stefano Moroni
Gran Sasso Science Institute - GSSI Cities and Polytechnic University of Milan
Land Tenure in Asia and the Pacific: Challenges, Opportunities and Way Forward
David P Mitchell , Danilo Antonio , Donovan Storey , Teo CheeHai and Lowie Rosales-Kawasaki
RMIT University - School of Mathematical and Geospatial Sciences , UN-HABITAT , United Nations - Economic and Social Commission for Asia and the Pacific (ESCAP) , Independent and UN-HABITAT
Estudio De Los Últimos Postulados Referentes a La Atribución Del Uso De La Vivienda Familiar. La 'Necesidad De Vivienda' (Survey on Latest Advancements on Legal Doctrine as to the Allocation of the Family Home Possession. 'The Need for Housing')
InDret, Vol. 1, 2016
Beatriz Verdera Izquierdo
University of the Balearic Islands
Distributional Consequences of Upstream Tree Plantations on Downstream Water Users in a Public-Private Benefit Framework
Agricultural Systems 139 (2015) 271-281
Thomas L. Nordblom , Iain Hume , John D. Finlayson , David J. Pannell , Jonathan E Holland and Anthea J. McClintock
Government of New South Wales - Department of Primary Industries , Australian National University , Charles Sturt University - Graham Centre for Agricultural Innovation , University of Western Australia , NSW DPI and NSW Trade & Investment - NSW Department of Primary Industries
New Amendments to Russia's Privatization Legislation: Cosmetic Measures or Further Deregulation?
Russian Economic Developments. Moscow, 2016, #2, pp. 86-92
Georgy Malginov and Alexander Radygin
Gaidar Institute for Economic Policy and Gaidar Institute for Economic Policy
Efectele Partajului (Effects of Partition)
Annals of the "Constantin Brâncuşi" University of Târgu Jiu, Juridical Sciences Series, Issue 2/2015,
University Constantin Brancusi of Targu-Jiu
К ВОПРОСУ О ЗАЩИТЕ ПРАВ ГРАЖДАН И ЮРИДИЧЕСКИХ ЛИЦ ПРИ ИЗЪЯТИИ ЗЕМЕЛЬНЫХ УЧАСТКОВ (To the Question of Protection of the Rights of Citizens and Legal Entities at Seizure of Land)
Russian Presidential Academy of National Economy and Public Administration (RANEPA)
Ukraine's Transition from Soviet to Post-Soviet Law: Property as a Lesson in Failed Regulation
U. of Adelaide Law Research Paper No. 2016-02
Paul T. Babie
University of Adelaide - School of Law
Попытки модернизации в России. Судьба собственника его собственности (институциональный анализ) (Attempts to Reform Russia: Tracking Back the Liberty and the Property)
Vladimir Lisin , Konstantin Moshe Yanovskiy and Sergei Zhavoronkov
Novolipetsk Steel - Novolipetsk Steel, Moscow , Gaidar Institute for Economic Policy and Gaidar Institute for Economic Policy
Les nouvelles frontières de l’expropriation: vers une expropriation pour cause d’utilité privée? (New Frontiers in Expropriation: Toward Expropriation for Private Use?)
Yaëll Emerich, Les nouvelles frontières de l’expropriation: vers une expropriation pour cause d’utilité privée? (2014) 48 Revue juridique Thémis de l’Université de Montréal 693.,
McGill University - Faculty of Law
Residential Communities in a Heterogeneous Society: The Case of Israel
In: Private Communities and Urban Governance: Theoretical and Comparative Perspectives, A. Lehavi (Ed.), New York: Springer (2016, Forthcoming)
Interdisciplinary Center Herzliyah - Radzyner School of Law
The Constitutional Mandate for Social Welfare – Systemic Differences and Links between Property, Land Rights and Housing Rights
Potchefstroom Electronic Law Journal, Vol. 18, No. 4, 2015
AJ van der Walt and Sue Viljoen
Stellenbosch University - Law and University of South Africa - School of Law
Why Restrain Alienation of Indigenous Lands?
University of Alberta Faculty of Law
Resisting Dignity Takings in China
Law & Social Inquiry, Vol. 41, Issue 3, Forthcoming, TLI Think! Paper 08/2016
The Dickson Poon School of Law, King's College London, Dickson Poon Transnational Law Institute
La destinée perpétuelle de la propriété entre symbolisme et aléas (The Perpetual Destiny of Ownership: Between Symbolism and Hazards)
Yaell Emerich, "La destinée perpétuelle de la propriété entre symbolisme et aléas" (2015) 45 Revue général de droit 501.,
McGill University - Faculty of Law
Comparative Overview on the Transformative Effect of Acquisitive Prescription and Adverse Possession: Morality, Legitimacy, Justice
REVUE INTERNATIONALE DE DROIT COMPARÉ, 2015,
McGill University - Faculty of Law
Monday, February 29, 2016
Stephen Miller and I have previously blogged about California Building Industry Ass'n v. City of San Jose, a case in which the California Supreme Court upheld the constitutionality of the City of San Jose's inclusionary zoning ordinance. The California Building Industry Association had filed a petition for cert with the U.S. Supreme Court. Today, that petition was denied. However, Justice Clarence Thomas warned that the court may yet take up the issue of the constitutionality of such ordinances.
Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively. These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity. Yet this case does not present an opportunity to resolve the conflict. The city raises threshold questions about the timeliness of the petition for certiorari that might preclude us from reaching the takings-clause question. Moreover, petitioner disclaimed any reliance on Nollan and Dolan in the proceedings below. Nor did the California Supreme Court's decision rest on the distinction (if any) between takings effectuated through administrative versus legislative action. Given these considerations, I concur in the court's denial of certiorari.
In other news, today Justice Thomas asked his first question from the bench in over a decade. Given Justice Scalia's passing, perhaps Thomas feels it is time for him to take a more visible role on the court.
Jamie Baker Roskie
Advanced registration for the American Planning Association's annual conference in Phoenix ends March 3
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Regionalism and ‘Wistful Hoping’
We praise the parochial nature of American land use law because it gives power to local people to cure local problems and take advantage of local opportunities that deeply affect them. This was borne out in our examination, in my previous post, of the advent of local environmental law; where local concerns over environmental degradation gave birth, arguably, to a new field of local environmental law.
In the seminal Euclid case, the owners of the property regulated by the Village–and an entire regional industry–were upset by zoning’s interruption of the natural evolution of land development. The U.S. Supreme Court wrote, “It is said that the village of Euclid is a mere suburb of the city of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village, and in the obvious course of things will soon absorb the entire area for industrial enterprises…. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit….”
The flip side of this is that natural resources, nonpoint source pollution, and economic and housing markets transcend local boundaries. They are intermunicipal, regional, and, in some cases, interstate in nature. Critics including industry, environmental, and fair housing advocates have bemoaned local control and called for its preemption by state or federal regulation, where their particular interests are thwarted.
The case that first validated local control of regional growth recognized the irony of its position. New York’s highest court, in Golden v. Planning Board of Town of Ramapo, wrote that “Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.” The court further noted, however, that local control should not be struck down “in the wistful hope that the efforts of [regional planning] will soon bear fruit.”
The dissonance between the regional nature of land use problems and local control is best explained by former House Speaker, Thomas P. O'Neill Jr., who quipped that "all politics is local." State and Congressional lawmakers stand for election in essentially local districts where control by remote governmental agencies is anathema.
The quandary can be resolved by searching for regional processes that respect the critical role that local governments play in land use decision-making. To be politically palpable, these initiatives must not be perceived as methods of imposing a state or regional body's will on local governments. Rather, they should be viewed as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time.
From its inception, the U.S. land use system has encouraged voluntary, grassroots approaches to intermunicipal and regional planning. The Standard City Planning Enabling Act provided for regional planning by authorizing local planning commissions to petition the governor to establish a regional planning commission and to prepare a master plan for the region’s physical development. Provisions were included in the Act for communication between the regional and municipal planning commissions, with the objective of achieving a certain degree of consistency between local and regional plans. Regional consciousness has been with us since the early days of American zoning.
Many localities have adopted sustainable development strategies because of encouragement, information, or funding provided by the state or federal government. This observation aligns with research results published in Urban Affairs Review, where the authors demonstrate that “more policy making occurs in states with a multilevel governance framework supportive of local sustainability action.” http://uar.sagepub.com/content/51/1/46
Localities will align their land use plans with common sense state policies if they receive information and support via state assistance offered in the right way, without a heavy top-down emphasis or requirements that seem like mandates. Correcting the deficiencies in the hundred-year old zoning system is not about taking away local power, but rather should focus on working with localities to build a better system. This suggests that we need to discover and implement methods of using federal and state policies and resources to support, guide, and sustain local initiatives to coordinate land use policy across municipal and state borders.
Regionalism is not at odds with our land use planning tradition. It need not be “wistful hoping” if approached in the right way. We have not, however, developed a consensus on the proper strategy of weaving local control into the broader fabric of society. It takes a clear understanding by federal and state lawmakers and agencies that parochialism has its place. We are still waiting for this insight to seriously shape their efforts to solve regional land use problems.
Links to previous posts in the Zoning Centennial’s Series:
Sunday, February 28, 2016
From the folks at Pace Law:
Pace Law School is pleased to announce that we are seeking an Associate Director of Environmental Law Programs to begin work in the late spring/early summer of 2016. The Associate Director is an integral member of the environmental law team at Pace, helping to run a multifaceted, dynamic academic program and working with a wide range of individuals both internal and external to the university. She or he will report to the Executive Director of Environmental Law Programs. Further description of the position and application requirements can be found at careers.pace.edu/applicants/Central?quickFind=55325. (Posting # 0602739). Pace’s Environmental Law Program is one of the oldest and most extensive in the world. It is perennially ranked as one of the top environmental programs in the nation. An overview of the Environmental Law Program can be found at http://bit.ly/1R6CQRZ.
Thursday, February 25, 2016
Land Use Prof Blog is a completely non-partisan forum, but I was fascinated to read this recent article in the Colorado Springs Gazette (apparently picked up from AP) about Marco Rubio's early career as a land use lawyer. (I'm guessing the article appeared in a Colorado publication because the Colorado caucuses are on "Super Tuesday," March 1, although the Colorado Republicans will not actually be caucusing for Presidential candidates, leaving that to their delegates at the national convention.)
It's not often that a zoning lawyer rises to national political prominence. The article is also interesting because it discusses Rubio's work for clients vis a vis his position in the Florida Legislature, and seems exemplary of the role of politics in local land use decisions.
Jamie Baker Roskie
Wednesday, February 24, 2016
Cost-benefit analysis of health benefits from reducing emissions so they do not surpass 2 °C released
The first cost-benefit analysis of health benefits from reducing emissions so they do not surpass a 2-degree C threshold is just out in Nature Climate Change. Here is the abstract (edited to eliminate internal footnotes):
An emissions trajectory for the US consistent with 2 °C warming would require marked societal changes, making it crucial to understand the associated benefits. Previous studies have examined technological potentials and implementation costs and public health benefits have been quantified for less-aggressive potential emissions-reduction policies, but researchers have not yet fully explored the multiple benefits of reductions consistent with 2 °C. We examine the impacts of such highly ambitious scenarios for clean energy and vehicles. US transportation emissions reductions avoid ~0.03 °C global warming in 2030 (0.15 °C in 2100), whereas energy emissions reductions avoid ~0.05–0.07 °C 2030 warming (~0.25 °C in 2100). Nationally, however, clean energy policies produce climate disbenefits including warmer summers (although these would be eliminated by the remote effects of similar policies if they were undertaken elsewhere). The policies also greatly reduce damaging ambient particulate matter and ozone. By 2030, clean energy policies could prevent ~175,000 premature deaths, with ~22,000 (11,000–96,000; 95% confidence) fewer annually thereafter, whereas clean transportation could prevent ~120,000 premature deaths and ~14,000 (9,000–52,000) annually thereafter. Near-term national benefits are valued at ~US$250 billion (140 billion to 1,050 billion) per year, which is likely to exceed implementation costs. Including longer-term, worldwide climate impacts, benefits roughly quintuple, becoming ~5–10 times larger than estimated implementation costs. Achieving the benefits, however, would require both larger and broader emissions reductions than those in current legislation or regulations.
Article cite: Climate and health impacts of US emissions reductions consistent with 2 °C, Nature Climate Change (2016): doi:10.1038/nclimate2935.
Tuesday, February 23, 2016
The Atlantic uploaded yesterday an interview by Amanda Kolson Hurley of Myron Orfield (Minn). Titled "The Persistence of America's 'Easy White Enclaves,'" the interview explores policy decisions about the siting of subsidized housing development, which issues are so topical now that SCOTUS has remanded the Inclusive Communities litigation. But, Orfield also discusses what his research has shown about what levels of integration (read: diminution of white predominance) lead to resegregation. The short piece links to a 2013 Housing Policy Debate article Orfield co-authored with Thomas Luce as well as a more recent study of the causes of segregation in the Twin Cities.
Apparently the wealthy elites are not pleased with the new directive issued by Chinese leadership to eliminate all gated communities. The Global Times has nice coverage:
A government document that instructs cities across China to open up the enormous numbers of gated residential compounds to ease traffic congestion aroused public controversy on Monday, with many residents arguing that the administrative order, though well-intentioned, may bring personal and property safety concerns.
The Communist Party of China Central Committee and the State Council on Sunday issued guidelines on urban development to deal with "urban ills" resulting from poor urban design. These ills include congestion, pollution and designing either over-large buildings or those which are too exotic.
The document said China will optimize the structure of street networks to promote an open and easy-access street-and-block system.
"No more enclosed residential compounds will be built in principle," the document said. "Existing residential and corporate compounds will gradually open up, so the interior roads can be put into public use, which will save land and help reallocate transport networks."
Since the late 1980s, many cities have built sprawling gated residential compounds - many with lawns and exercise venues and facilities inside - for safety and a better living environment for the apartment owners.
Congestion has plagued China's cities, despite ambitious expressway-building projects. Freeing up narrower roads and congested street designs have become a new concept in the country's urban planning.
The release of the guidelines comes two months after leaders met for the Central Urban Work Conference, promising to make China's sprawling cities more livable and green. The last time China held such a meeting was in 1978, when only 18 percent of the population lived in cities. That had increased to 56.1 percent by the end of 2015, according to the Xinhua News Agency.
"The second urban work conference, 37 years after the first, shows that urban planning is a core problem in China's economic and social development," Niu Fengrui, director of the Institute for Urban and Environmental Studies at the Chinese Academy of Social Sciences, told the Global Times.
From the NYT:
A directive issued on Sunday by the State Council, China’s cabinet, and the Communist Party’s Central Committee says no to architecture that is “oversized, xenocentric, weird” and devoid of cultural tradition. Instead, buildings should be “suitable, economic, green and pleasing to the eye.”
The directive also calls for an end to gated communities. . . .
[T]he same directive also says there are to be no more gated residential communities. Those already in place will be gradually opened to the public, with their roads opened to traffic with one goal being to ease congestion.
China began building gated apartment complexes and suburban developments in the 1990s when the private property market first took off.
Monday, February 22, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Advent of Local Environmental Law
As American development progressed into the 1980s, the landscape changed due to the prevalence of sprawl. People became perturbed at the local level, where environmental degradation is painfully obvious. Natural resources were threatened. Open space, wetlands, and habitats—and their obvious local benefits—diminished. Many of these problems were beyond the reach and competence of federal environmental law, with its primary focus on point source pollution of the air and navigable waters. As these worries deepened, local leaders and their lawyers gradually learned to rely on “local environmental law” as an antidote and, in doing so, greatly widened the net of land use law.
As land use regulation matured during the 1950s and 1960s, the line between physical, or infrastructure, planning and natural resource protection blurred. In 1955, for example, rezoning that increased lot sizes in single-family zones to protect drinking water from pollution was upheld in De Mars v. Zoning Commission of Town of Bolton (CT. 1955). The Connecticut Supreme Court rested its decision, in part, on the fact that one of the purposes of the state zoning enabling act was “to promote the most appropriate use of the land.” The National Flood Insurance Program, created in 1968, exerted an early and strong influence on the initiation of local environmental legislation. It required localities to adopt and enforce floodplain zoning restrictions so that local property owners would be eligible for flood disaster insurance and payments. Although originally focused on minimizing property loss and personal injury, flood insurance regulation gradually recognized and, in some cases, protected the ecological services provided by floodplains. This concern for nature gradually grew as local environmental law progressed into the 1990s.
Local land use law, we now understand, dictates how much of the land is covered with impervious surfaces, causing flooding; how many miles of roads are built, fragmenting habitats and watersheds; how many septic systems, sewer plants, and water systems are created, diminishing ground and surface water quantity and quality; and where buildings and improvements are located, increasing vehicle miles traveled and air pollution, aggravating climate change. Quite obviously, regulating land development and environmental considerations are intimately linked.
As local environmental perturbations increased, more localities adopted laws that protect natural resources and lessen environmental pollution. These local environmental laws take a number of forms and accomplish an array of objectives. They include local comprehensive plans expressing environmental values, zoning districts created to protect critical environmental areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural features such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. Local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them to address locally occurring environmental problems.
Much progress has been made under the authority to encourage the appropriate use of the land through zoning. In some states, however state legislatures are more explicit. They authorize local governments, for example, to protect the physical and aesthetic environment, control development in floodplains, prevent soil erosion, or require local governments to conduct environmental impact reviews before approving development proposals.
The evolution of this authority is seen in South Carolina. The state constitution authorizes the legislature to provide for “the structure and organization, powers, duties, functions and responsibilities of the municipalities.” The state constitution says that “[t]he provisions of [the] Constitution and all laws concerning local government shall be liberally construed in their favor,” and that any powers granted local governments by the constitution and laws “shall include those fairly implied and not prohibited by [the] Constitution” (S.C. Const. Art. VIII, § 17).
This broad grant of local authority was statutorily implemented by the South Carolina Legislature through the South Carolina Local Government Planning Enabling Act, which requires local plans to include natural resource components.. State law requires that all zoning and land use regulations must be in accordance with the comprehensive plan. The Act also authorizes a variety of Neo-Euclidian techniques to be used, and makes it clear that “any other planning and zoning techniques may be used.” Municipalities are authorized by this state law to consider “the protection of . . . ecologically sensitive areas” in adopting their zoning laws.
We learn two key lessons from this continuing progress toward a robust system of local environmental law. The first is that local legislators, driven by residents animated by environmental degradation, have surprisingly broad powers to protect the environment in many states. This springs from the parochial nature of local land use law, where citizens within constrained borders call for their natural resources to be protected. The second is that environmental resources often transcend those borders and require intermunicipal or regional arrangements to be effectively protected, which I will take up in Part 8.
Links to previous posts in the Zoning Centennial’s Series:
Sunday, February 21, 2016
Worth noodling around with.
From the press release:
The U.S. Environmental Protection Agency today released DWMAPS – the Drinking Water Mapping Application to Protect Source Waters. This robust, online mapping tool provides the public, water system operators, state programs, and federal agencies with critical information to help them safeguard the sources of America’s drinking water.
DWMAPS allows users to learn about their watershed and understand more about their water supplier. DWMAPS also lets users see if sources of their drinking water are polluted and if there are possible sources of pollution that could affect their communities’ water supply. DWMAPS can even guide users to ways they can get involved in protecting drinking water sources in their community.
“A key part of having safe drinking water is protecting the sources – the streams, rivers, and lakes where utilities withdraw water,” said EPA Administrator Gina McCarthy. “DWMAPS is the latest example of how EPA is using technology and digital tools to better protect public health and the environment.
Utilities and state drinking water program managers can also use DWMAPS with their own state and local data. It allows them to identify potential sources of contamination in their locations, find data to support source water assessments and plans to manage potential sources of contamination and evaluate accidental spills and releases. DWMAPS also integrates drinking water protection activities with other environmental programs at the federal, state, and local levels.
DWMAPS can provide users with information to update source water assessments and prioritize source water protection in any location or watershed in the country. Specifically, DWMAPS helps users to:
- Identify potential sources of contamination in locations defined by users;
- Find data to support source water assessments and plans to manage potential sources of contamination;
- Evaluate accidental spills and releases, identifying where emergency response resources for accidental releases must be readily available; and
- Promote integration of drinking water protection activities with other environmental programs at the EPA, state, and local levels.
The mapping system will not display the locations of Public Water System facility intakes, but it does contain a wide variety of data useful to the protection of drinking water sources. EPA developed DWMAPS in consultation with EPA regional drinking water programs, state drinking water regulators, and public water systems.
Friday, February 19, 2016
High Country News is a print and online publication that offers excellent coverage of news related to Western issues. Yesterday Elizabeth Shogren, their "DC Dispatch" reporter, posted a fascinating article entitled "Scalia was Supreme Court’s leader on limiting environmental rules: A conservative legal foundation fears its winning streak may be over."
In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”
Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”
The article also discusses the potential impact to the Clean Power Plan, as well as the impact to administrative-law-related decisions generally.
Jamie Baker Roskie
Thursday, February 18, 2016
Miller & Sivas on Bloomberg Radio discussing Sierra Club's new fracking case related to Oklahoma earthquakes
Today I did an interview with Bloomberg Radio about the Sierra's Club's fracking lawsuit in Oklahoma. Here is Bloomberg's write-up:
Stephen Miller, a law professor at the University of Idaho College of Law, Brandon Barnes, a litigation analyst for Bloomberg Intelligence, and Deborah Sivas, a professor of environmental Law at the Stanford University Law School, discuss a lawsuit against three fracking companies in Oklahoma. The lawsuit, which has been brought by the Sierra Club, alleges that the fracking process has led to an increase in earthquakes in the surrounding areas. They spoke with Bloomberg Law host June Grasso on Bloomberg Radio’s "Bloomberg Law."
Great planning position in Menlo Park. From my friend Thomas Rogers:
Salary: $105,950.29 - $127,766.65 Annually
Under the general direction of the Community Development Director, performs work necessary to maintain professional planning functions, process development projects, and provide for effective administrative operations to ensure a sustainable, safe and vibrant community; and any other related duties as required.
IMPORTANT AND ESSENTIAL
This is a professional planning supervisory classification. Work consists of continuing responsibility for implementing the city’s planning functions by personally performing work and providing direction to others in one or more of the following areas.
Focus on single-family residential development, small multiple-family residential development and neighborhood commercial development within the context of current planning activities. Responsible for the City’s ordinances, regulations and processing systems in these same focus areas as well as implementation and updating of the City’s Housing Element.
Direction and Supervision
Provides direct supervision of Planning staff; Participates in the selection, training and evaluation of staff; Assists in preparing the annual goals and objectives for the Planning functions; Assists in preparing and managing the budget for the Planning functions.
Conducts and supervises professional planning work connected with the development, monitoring and updating of City policy and regulatory land use documents, including the General Plan, Zoning Ordinance, specific plans and other land use studies; Provides guidance to and coordination of the professional planning team, including consultants, to ensure work is progressing toward established goals; Effectively represents the City at public meetings and to Commissions and the City Council; Provides guidance on appropriate community engagement and outreach tools and approaches; Provides guidance on necessary data collection, analysis and management; Evaluates long-range planning documents on an on-going basis and recommends to the Director timely revisions of the documents.
Conducts and supervises the professional review and processing of proposed development projects to ensure that applications for land use entitlements are complete and in conformance with City policies and regulations, as well as regional, state and federal requirements; Determines appropriate legal and regulatory procedures; Provides professional planning advice to and assistance to project applicants, members of the community, Commission and Council members; Coordinates the technical processing of development proposals, including compliance with the California Environmental Quality Act; Monitors general operating policies and procedures for the efficient and cohesive review of development proposals and recommends changes to the Director; Interprets development regulations and resolves inconsistencies in requirements.
California Environmental Quality Act
Personally prepares or supervises the preparation of documents required to ensure compliance with state and federal environmental requirements. If needed, arranges for obtaining consultant services for preparation of environmental documents including the development of requests for proposals, selecting the consultant, processing an agreement and supervising the consultant’s work.
Coordinates with other City departments, other local jurisdictions and agencies, and regional, state and federal agencies during the development review process for individual projects.
Serves as Secretary and/or staff for Planning matters on behalf of the Community Development Department to various Boards, Committees and Commissions; Prepares reports on planning and administrative operations necessary for effective monitoring of the development review process; Conducts special studies and prepares related reports as needed to evaluate specific issues; Provides information to members of the public and other persons on Planning policies and regulations; Receives, investigates and responds to complaints connected with planning operations and personnel; Performs other work assigned by the Director which is consistent with the scope of responsibilities of the position.
- Assist in developing department goals and objectives and assist in the development of and implementation of policies and procedures;
- Coordinate development review activities;
- Supervise and participate in the implementation of the City's General Plan;
- Conceive and implement programs and activities to improve the efficiency of the development review process;
- Recommend the appointment of staff, provide or coordinate staff training, conduct performance evaluations, and implement discipline procedures as required;
- Research and prepare technical and administrative reports and written correspondence;
- Establish and maintain positive working relationships with co-workers, other City employees, public and private officials, and the general public using principles of good customer service;
- Perform related duties as assigned.
JOB-RELATED AND ESSENTIAL
Principles and practices of governmental development review including planning, engineering and building inspection; State, County and City laws and regulations applicable to development review; principles of management, personnel administration, and public relations; principles and practices of policy development and implementation; principles and practices of leadership, motivation, team building and conflict resolution; principles and practices of business correspondence and report writing; pertinent local, State and Federal rules, regulations and laws; budgeting procedures and techniques; and modern office procedures, methods and computer equipment.
Prepare, review and interpret a sound development review program for the City; collect and analyze data, and recommend revisions in municipal land use regulations consistent with local needs; analyze budget and technical reports; interpret and evaluate staff reports; know laws, regulations and codes; observe performance and evaluate staff; problem solve department related issues; interpret and explain policy, rules and procedures; prepare ordinances and formulate recommendations for land use policies; analyze problems, identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; gain cooperation through discussion and persuasion; mediate problems and resolve conflicts within the Department and with other City Departments; communicate effectively, both orally and in writing; prepare oral and written reports and provide staff direction; train, supervise and evaluate assigned staff; establish and maintain cooperative working relationships with those contacted in the course of work.
Equivalent to graduation from an accredited four-year college or university with major work in a closely related field.
This position may require at least five (5) years of full time, increasingly responsible experience in municipal development review work.
LICENSE OR CERTIFICATE
Possession of a valid California Class C driver’s license and a satisfactory driving record as a condition of initial and continued employment.
May sit for long periods of time; May attend night meetings; operates general office equipment.
Supervision Received and Exercised:
Receives direction from the Director of Community Development; Exercises direct supervision over professional planning staff; May be asked to serve as Director of Community Development in Director's absence; This classification may also perform any and all functions of Senior Planner, Associate Planner and Assistant Planner.
The City offers an excellent benefit package consisting of:
- Vacation: 11 days per year to start out and will gain more with time and tenure.
- Sick Leave: 8 hours per month earned.
- Health Insurance: City contribution towards medical coverage.
- Holidays:11 official holidays and 30 float hours off per year.
- Dental: Delta Dental Plan
- Vision - City sponsored
- Retirement: CalPERS: For classic members 2.0% @60 formula. For all others, 2%@62 formula. For more information on how CalPERS retirement reform (PEPRA) affect you, please contact CalPERS at 1-888-225-7377.
- Deferred Compensation: Voluntary participation in City Plans.
- Life Insurance: 1-1/2 times regular annual wage.
- Long Term Disability: Subject to a 45 day waiting period.